"There's three ways to do things: the right way, the wrong way, and the Max Power way." "Isn't that the wrong way?" "Yeah, but faster!"

Saturday, October 05, 2002

NEW YORK TIMES PIECE on the FBI's tracking of individuals who they think might have something to do with al Qaeda sleeper cells, or something. I liked this part of the story:

Some law enforcement officials say that when they have detected Al Qaeda loyalists in the United States since Sept. 11, they have tended to be hapless malcontents and not disciplined terrorists.

"They are hangers-on and wannabe terrorists for the most part," said one official, adding, in reference to the leader of the Sept. 11 plot, "Mohammed Atta wouldn't have asked most of these guys to take out his trash."

GOOGLE GROUPS IS now putting sponsored-link ads ad the tops of people's archived Usenet posts, as can be seen in this example. A little creepy, but maybe not all bad, since one of Google's sponsored links led me to this extremely useful service that alerts you by telephone or pager whenever there's a police chase on local TV in Los Angeles.

ONE OF THE PRIZEWINNERS at the latest Ig Nobel awards was the brilliant Periodic Table Table. Just think of how impressive you'd be to dates if you brought them home to your place and had one of these.

I'VE SEEN MORE THAN one commentator excuse the $28 billion punitive damages award against Philip Morris on the grounds that Philip Morris had $72.9 billion in revenue (revenue, not profits) last year.

Philip Morris (MO) has $72.9 billion of revenue not just because of cigarettes, but because they sell a lot of cheese and coffee and cereal and beer and mayonnaise and Jell-O brand gelatin.

So any punitive damages award based on the size of MO's revenues is punishing Philip Morris for being successful at selling cheese. After all, if MO sold less cheese, then the punitive damages would be lower, right?

Yes, punitive damages need to make the tortfeasor feel the sting: I need a larger punitive damages award to deter Warren Buffett from deliberately smashing in my windshield than I do for the guy from the "Bumfights" video. But that rationale doesn't apply to corporations that are being punished for selling products. If they are large, it is because either (1) they sell a lot of innocuous products, and shouldn't be punished for that, or (2) they sell a lot of sinister products, and they will face punitive damages in a lot of other lawsuits. If Philip Morris did something wrong to this lady, there are 10,000 other people that they did something wrong to. If each of those cases award $3 million in punitives, then Philip Morris feels the sting appropriately.

It would be one thing if the $28 billion were a one-time punitive damages award, and Philip Morris would never be punished again. But there are hundreds of other lawsuits from smokers, each of which is seeking punitive damages, and not one of which will be precluded from doing so by this jury's award. This jury's award is thus unreasonably high, because it's punishing Philip Morris for being big than for doing something wrong. There is absolutely no economic rationale to have punitive damages for products liability be more than some reasonable multiple of actual damages.

Of course, actual damages are inappropriate here, also. There's no evidence that the sine qua non of this woman's smoking was Philip Morris's behavior, as opposed to her lack of willpower. Lots of people quit smoking with encouragement from the cigarette companies. Lots of people smoke now even though cigarette companies frankly admit that smoking is dangerous. (Indeed, according to Kip Viscusi, smokers overestimate the risk of smoking.)

I don't smoke, I get annoyed at people who smoke in front of me on a moving escalator, but I still recognize this as a dangerous dangerous case. If the government has the power to randomly swoop in and take a third of your revenues for the year, well, that's a huge disincentive to doing business or investing in a business that can face such confiscatory policies. The same is true when the government's power is backed by a random assortment of twelve underemployed people and a judge who hates corporations. This isn't just cigarettes, it's hospitals, auto manufacturers, food sellers, retail stores, banks, etc. Jury verdicts like this do more damage to the economy than a hundred Ken Lays.

Friday, October 04, 2002

A COLLEAGUE TRIED TO talk to me about the New Jersey Supreme Court decision today, and I waved him off, on the grounds that I was old and cynical, and I have come to accept that a bunch of state court judges are going to throw the law out the window to come to a preferred result. It's part of what I call the Judge Judy-ization of the law: judges ignoring legal principles and acting as Solons to dispense rough justice on a case-by-case basis. Editorial page writers will be pleased with some opinions, displeased with others, and the judges feel more important. And, in their role as enlightened despots and philosopher-kings, the New Jersey Supreme Court came to a pretty good decision: let's let a new candidate enter the election.

Now it goes to the U.S. Supreme Court, and there are no happy results: the Court can follow its role and place in federal law and do nothing, which would be procedurally correct on their end, but leave in place the procedural disaster of the New Jersey Supreme Court. Or, they can repeat the Bush v. Gore fiasco, and correct the wild mistakes of a state court, at the expense of the politicization of the institution. This would actually be worse than Bush v. Gore, since there was at least a federal interest that the Court protected by reversing the ugly and even more unforgivable Florida Supreme Court decision.

Of course, if you care about things like the law and consistency in application of the law and separation of powers, Professor Volokh dismantles the New Jersey opinion in a few short paragraphs. Volokh goes on to suggest in later entries, correctly in my view, that there really isn't much of a federal reason for the Supreme Court to take this case.

The Professor's mistake is presuming (if, perhaps, only for the sake of argument) that this opinion is anything other than sui generis.

The thing is, though, that if judges are going to create new law on a case-by-case basis, well, that's not only bad for those of us who would like the law to be predictable so that we can advise our clients on how best to act within the law, but it also brings into full relief the undemocratic nature of most courts, and the executive branch will be hard-pressed to complain when the legislative branch wants to put a little more scrutiny into its duty to advise and consent to judicial nominations. Maybe it's not enough to be a brilliant and fair-minded law professor, a la Michael McConnell, if that law professor has policy views that differ stringently from the mainstream on issues like abortion and church-state separation, a la Michael McConnell.

In an ideal world, judges act as judges, and McConnell is a more than appropriate choice for the bench. But if judges are going to be overriding legislative policy, my standards change.

The breakdown exhibited by the New Jersey Supreme Court is problematic for other reasons. If the New Jersey Supreme Court is not bound by the policy decisions of the legislature, on what grounds are the lower courts bound by the decisions of the New Jersey Supreme Court?

EUGENE VOLOKH steals my thunder by blogging just about word for word what I was going to say about Dahlia Lithwick's interesting Slate piece on Winona Ryder. To wit: good piece, unfair slam at Ken Starr. Adding what Volokh left out: Starr, a former solicitor general, gave up a $2 million/year law practice to take what he viewed to be a public service position. Whatever his faults as special counsel in the Whitewater affair (faults magnified by the Clintons' strategy of an unprecedented stonewall of failing to cooperate), Starr wasn't doing it for personal glory, and cannot be said to have improved his career prospects by his actions. Starr made himself political mud, costing him a shot at a Supreme Court seat, and returning to his law firm at a sharply reduced salary.

LILEKS JOINS SOME LIKE-MINDED pundits by pointing out that the U.S. has already got a "coalition" against Iraq: "Turkey. Kuwait. Bahrain. Qatar. Britain." How about this: The Europeans only think a coalition is for real when it's got more white people in it!

Of course, that's a silly oversimplification; most observers are putting a lot of stock in the opinions of the wealthier industrialized countries because they figure the smaller non-European countries listed above are too fearful of the U.S. and thus too easily bullied into agreeing with us, while the Europeans know they can get away with pretending to be as strong as us. Nonetheless, I offer the reasoning in the first paragraph as another cognitive-dissonance bludgeon that other bloggers can whack the multiculti Europeans over the head with day in and day out, because God knows that never loses its charm.

FROM THE MORNING BLOGWATCHING: Josh Chafetz doesn't think there's really a federal question in the New Jersey ballot decision, as he figures the U.S. Supreme Court would have a hard time overturning the decision without issuing its own de novo interpretation of New Jersey law, which he doesn't think the SCOTUS is supposed to do. Any opinions on that, Max?

Meanwhile, Daddy Chapman is getting deep as the Marianas Trench on us again, pondering the anti-Midas Touch and the Fall from Grace as it relates to Brendan O'Neill's arguments against taking action against Iraq.

I WAS CHARMED BY this sentence from a Washington Postreport this morning:

Box trucks are indispensable to the myriad mundane exchanges so critical to microeconomics, and hence they are everywhere.

Unfortunately, the byline strike keeps me from being sure who came up with this off-kilter alliterative sentence containing a surprising digression into economics about halfway through -- maybe the strike has made the Posties figure they can get away with that much more -- but I'm guessing it was Stuever, since he's known for these insta-zeitgeist essays full of entertaining phraseologies and pithy quotes from people who accidentally find themselves on the periphery of a story.

On the other hand, the Post has quite a few writers who are good at the quick-and-dirty human-interest bit, so it's no surprise they did a pretty good job with the inevitable bios-of-the-slain piece.

HEY, LILEKS! A MARVELOUS SITE WITH Warner and Disney World War II propaganda cartoons that never get shown on television, either because of the Japanese racial stereotypes, or the disturbing image of Donald Duck wearing a swastika and heiling Hitler, or because we are friends with Germany and we have always been friends with Germany.

Thursday, October 03, 2002

I HAVE TO SAY THAT the recent Montgomery County shootings have really highlighted the worst aspects of blogs -- lots of uninformed speculation and unfounded conclusion-jumping. I read all sorts of scenarios drawn from the supposed fact that the victims were killed with one shot each (not so: one shooting didn't kill anyone; the Sarah Ramos shooting left a bullet-hole in a window); that the killings used a super-bullet that left no blood (contradicted by witnesses who saw blood); that the newspapers were hiding the race of the victims (not so); that the newspapers were hiding the race of the gunmen when there's no sign that anyone has seen the gunman or gunmen. The Bryan Preston post that C-Boy linked to was interesting in its discussion of al Qaeda terror tactics -- but Preston completely overstates the claim that the scenarios described in the terror-training tape had any similarity to the shooting spree. They didn't. Is the urge to get an Instalink so great that people feel compelled to rush to be the first add to the noise surrounding the signal? What I read in blogs today subtracted from the discourse rather than added to it.

TODAY'S WALL STREET JOURNAL on North Korea's mild flirtations with capitalism. Lately I've had the feeling that the next couple of decades will be a good test of libertarians' faith that hopes for capitalist prosperity will be an important means of spreading individual liberties. If any place in the world is well positioned to be simultaneously capitalistic and ruthlessly authoritarian, East Asia is probably it, as China seems determined to prove. Then again, as the WSJ article notes, China has abundant resources that North Korea lacks, not to mention some measure more freedom than North Korea has. Meanwhile, North Korean reform programs have been stymied because "everyone was afraid of being accused of an ideological crime," in the words of an academic quoted in the article -- just the sort of thing the libertarian-inclined would predict.

PLEAS FOR MIDDLE GROUND on the copyright wars by PhotoDude, who approaches the situation as an individual copyright holder.

The two creepily caricature-like sides are pretty well portrayed by The Onion this week, although I think the Onion writer only intended to mock one side of the ludicrous debate, i.e., the RIAA side. Probably by accident, the Onion piece itself is a great display of the sorts of analogies that are put forward by anti-RIAA types who have no clue about the economics of the record industry. The reality is that record companies do get royalties from airplay on the radio, not to mention the intangible benefit of free advertising. (File trading can be seen as free advertising too, but it also tends to eliminate the need for music fans to actually buy the product, which isn't the case with radio airplay unless people are actually happy with songs taped off the radio, which I find hard to believe.)

YOU KNOW, I AM A FIRM believer against discrimination on the basis of skin color, but, upon further reflection, I need to make an exception when the skin color (in this case, blue), is the result of self-induced stupidity.

WAS A LITTLE ANXIOUS walking home from work today given that the random shootings took place somewhere not far from where I live and work. However, astute readers will observe that the shootings happened outside the Beltway and I live inside the Beltway, which means I might be protected by the Reality-Warping Force Field!

The prospect that this is some kind of terrorist attack is being discussed by JunkYardBlog's Bryan Preston, who recently wrote an NRO guest piece about some vaguely similar tactics seen in an al Qaeda training video. I dunno about the terrorism angle, myself. Meanwhile, Martin Roth, who lives right in the middle of the shootings, has some good bloggage on the subject too -- although he's mistaken in saying that WTOP is the local Limbaugh 'n' Hannity radio station. 'TOP is an all-news station, while the yammering-conservative-pundits station is WMAL.

Wednesday, October 02, 2002

UNINTENDED CONSEQUENCES, EXAMPLE No. 736. The federal Equal Access Act for Secondary Schools, designed in reaction to urban legends of Christian clubs not being allowed to meet in school, also requires acceptance of the Satanist Thought Society, and local Christians are shocked that such a club is in the high school.

Tuesday, October 01, 2002

GOOD ARTICLE IN last Thursday's Roll Call about the working group looking at continuity of government in the House, for which there currently is no efficient mechanism for dealing with the possibility of a huge number of lawmakers being killed in a terrorist attack or other disaster. (Blogwatchers will recall that PhotoDude has written about this lately.)

Looks like some members of the bipartisan working group see this as the first step toward a constitutional amendment. Did anyone bring up the issue of continuity of Congress back in the Sixties when the 25th Amendment was being kicked around? Ah well, there are certainly some people fascinated by all sides of the issue now.

[One publication interviewed] Ali Eddaoudi, a writer and prison chaplain here in The Netherlands. According to him, "Hirsi Ali has created this problem herself". He accuses her of flirting with the Dutch and telling them what they want to hear. "She wants to be popular without weighing-up the consequences. You can't just say whatever you want, she's hurting people badly" he claims as justification for the threats.

BLAIR SPOKE BEFORE THE Labour Party convention today to further lay down the case for action against Iraq. In doing so, he once again specifically spoke against anti-Americanism in Britain and other countries and felt he had to state clearly that he doesn't intend for the U.K. to be "the 51st state of anywhere". Take that, George Michael!

LORD HELP ME, I can't get this song (the link is to a video made by some British wacko to celebrate one of his favorite electro-tunes) out of my head today. Uh-huh. And to think that they say those folks across the pond don't like us Americans. Uh-huh. (Warning: may be borderline not-safe-for-work, as they say. Uh-huh.)

SNOPES TAKES ON A silly conspiracy theory (spread by, inter alia, Damian Penny's favorite conspiracy nuts) that alleges FEMA had people in New York ready for the WTC attack the night before the attacks happened. The whole thing sprang from one understandable misstatement by some fellow tossed in front of CBS's klieg lights during the confusion of the early recovery effort.

I've been interested in conspiracy-mongers and other fringe types for years, and I've found that many, if not most, conspiracy theories and other fringe beliefs start from some misperception that could only be made by someone whose brain tolerances are ill-tuned for dealing with the clutter and disorganization of the real world. The strange thing is that they have an easy time positing clutter and disorganization in their fantasy worlds if that's what it takes to reconcile their fringe beliefs with the facts.

IN CASE YOU WERE wondering about me, here are two certified true facts: I wish I were able to go to law school, and lately I've been extremely curious about Kyrgyzstan. Do any of you know anything interesting about Kyrgyzstan?

Monday, September 30, 2002

A BONE IS UNINTENTIONALLY TOSSED to the war-is-for-oil crowd by Eugene Rumer of the Institute for National Strategic Studies, who writes in the Washington Post that the U.S. and Russia ought to work together for the best use of Iraq's oil supply once Saddam is out of the picture. Of course I see sort of thing as an effect of the push for war, not the cause of the push for war -- and there's no doubt that the oil supply is vital to the U.S. national interest, whether we like it or not. But I'll bet a lot of pro-war types (yr. obdt. servt. not included) kinda wish the oil-policy types would temporarily observe the same kind of omerta that makes transplant coordinators delay broaching the subject of organ donation to a terminally ill patient's family. Only in this case it wouldn't be a politeness kind of thing, but more of a shanda-for-the-goyim kinda thing.

Oh, and speaking of the goyim, check out the penultimate paragraph of a WaPo piece today on former Enron exec Andy Fastow:

Members of Congress deride him as "Fast Andy Fastow" and the "Betty Crocker of cooked books." He receives death threats and sees anti-Semitic postings about himself on Internet message boards. He burrows into his legal strategy and drives his kids to school, obsesses on the small details of his past and contemplates black holes in his future.

Has it really come to this yet again: Judenhass as the first refuge of the blowhards, no matter the topic and regardless of their political leanings?

EXTENDED ADOLESCENCE or just cost- and fashion-consciousness? Today's Wall Street Journal A-hed is about grown-up women increasingly shopping for teen girls' clothes -- fashion-forward outfits that are priced well below what retailers try to squeeze out of women who work for a living. I've spotted this myself in the streets of the self-conscious neighborhood where I am just barely able to afford to live; frequently I'll spot someone in the halter-top and miniskirt combo of the Britney-inspired, or the tightly cut blouse/capri pants look favored by indie-rock girls who may or may not be old enough to be served at the local hipster bars, and then she'll turn around and I'll see the lined face of a fortysomething woman. Not that I'm scoffing: The women tend to look pretty good in those outfits, or at least better than they'd look in traditional boring middle-aged clothes. It's still a little jarring, though, but I guess I'll get used to it, same as I've gotten accustomed to seeing men carrying shoulder bags that look for all the world like purses.

THEM WACKY JAPANESE are now holding classes in swimming with your clothes on. But really, it's actually a pretty good idea, because it's hard to swim that way, but that's what you'll have to do to avoid drowning if you fall in by accident someday, right? [Via AMCGLTD.]

Sunday, September 29, 2002

HERE'S AN annoyingly vague Village Voice piece by Sarah Goodyear about what happened when she called the Feds on Sept. 13, 2001, to report that a livery cabbie from Egypt had told her back in July that Osama bin Laden's boys would be attacking D.C. and New York. It's like, so literary, man, because the scene at the beginning of the article is actually, like, the end of the story, you know?

I AM SURPRISED TO learn that it is suddenly a controversial proposition that Supreme Court clerks are screened on ideology. The issue arose in the Estrada hearings.

My appellate clerkship was for a prominent Reagan appointee. I was made to understand that, as a result, I had no hope for a clerkship with the three most liberal justices on the bench in the early 1990s. It was well known that the clerks for these justices blocked resumes from those without sufficient left credentials from getting considered. (I was similarly disqualified from Justice Thomas's consideration because I had not been a member of the Federalist Society.) The only reason to apply was an anecdote that Justice O'Connor had been offended by a candidate that had failed to apply to every single justice for a clerkship. (She didn't select me, either.)

The Senate has the power to advise and consent to judicial nominations, and if they want to screen nominees on ideology, they're certainly entitled: there's no question Estrada was picked on ideological grounds. It's an ugly thing, however, if he's retroactively disqualified for something he did that was considered of no moment in the 1990's. If he was screening candidates for Kennedy, it was because Kennedy wanted him to, and there's no indication that Estrada was acting outside the scope of his agency.